The agreement will extend commitments well beyond those established under the multilateral World Trade Organization (WTO), reaching further “behind the borders” to limit governments’ policy and regulatory options. This makes it a political and not just an economic treaty, yet negotiations are secret and there is no requirement for Canadian parliamentary approval of the final agreement. Legislators from seven of the 12 countries in TPP negotiations, including Canada’s NDP trade critic and Green Party leader, recently endorsed an open letter demanding release of the treaty before it is signed, and allowing ample time for public and political scrutiny.

Several of the TPP chapters already have been leaked. Two key chapters of public health concern regard investor-state dispute settlement (ISDS), and intellectual property rights (IPRs).

ISDS allows foreign corporations to sue a government for regulations that they believe expropriate or diminish the value of their investments. “Investment” in the draft TPP chapter includes trademarks, making public health measures regarding tobacco control or even labeling requirements for alcohol or food products potentially vulnerable. ISDS provisions in other treaties are already being used to challenge Australia’s cigarette plain packaging law and Uruguay’s tobacco health warnings. Uruguay is able to defend its tobacco control policies only because of financial help it receives from the American Bloomberg Foundation.

In the 1990s, Canada abandoned its plans for plain packaging fearing a tobacco company lawsuit under ISDS provisions in NAFTA. ISDS disputes can also delay new public health regulations since their resolution can take years and countries will avoid introducing new policies until the outcome.

Under U.S. proposals on intellectual property rights, the Trans-Pacific Partnership would further extend the current WTO period of patent protection for drugs, potentially delaying entry of price-competitive generics by an additional five years. It has been estimated that Canada’s shorter two-year extension in the Comprehensive Economic and Trade Agreement with the EU will increase public health drug costs by $850 million to $1.6 billion annually. The federal government has agreed to compensate provincial health ministries, but with public taxes and no apparent public benefit.

Drug companies argue that patent extension is fair compensation for delays in drug registration approvals, ignoring that the lengthy 20-year patent protection period under Trade Related Intellectual Property Rights (TRIPS, one of the WTO agreements) was designed to account for this lag time. U.S. proposals would also loosen the criteria for a patent, no longer requiring that a new drug show improved efficacy. When Canada revoked patents on two of Eli Lilly’s drugs because they failed to deliver on promised benefits, it was hit with a $500-million suit under NAFTA’s ISDS chapter. The outcome of this challenge is unknown, but new U.S. provisions in the Trans-Pacific Partnership would almost certainly be in the drug company’s favour.

What would public health want from a final TPP agreement?

Resist U.S. efforts to weaken compulsory licencing rights under TRIPS and to extend drug patents. End specious industry challenges to tobacco control, and other health-damaging products, such as so-called obesogenic foods that contribute to the obesity pandemic, with a general health exception across all TPP chapters.

Some health and environment exceptions from earlier trade treaties are being mooted in leaked TPP texts, most of which have failed to provide the ironclad protection required for future policy and regulatory space. Irrefutable legal language is needed to create health and environment exceptions with the capacity to prevent ISDS and other challenges to future public health regulations.

Finally, valid claims about the economic benefits of such treaties are needed. While economic gains can provide trickle-down health improvements, one estimate of the Trans-Pacific Partnership shows only miniscule gains for high-income countries, including Canada, and steep losses for TPP developing countries, notably Vietnam.

Is it really worth giving up important public policy flexibilities in the future for such modest economic gains in the present?

Ronald Labonté is Canada Research Chair in Globalization and Health Equity in the Faculty of Medicine at the University of Ottawa. Ashley Schramm is a doctoral candidate in the population health program at the University of Ottawa. They are researching the health impacts of the TPP.

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